Keywords

Introduction

Contemporary discourse on international migration reflects its status as a volatile political issue. This is the case in various countries and across regions, where metaphors such as “a flood” or “an invasion” of migrants heading to “fortressed” borders have conveniently over-simplified the complex issues of migration (Musolff, 2011; Shariatmadari, 2015). Japan and Taiwan are not exceptions in this political discourse. Concerns of national security, financial insecurity, and discrimination, in largely ethnically homogeneous populations, make rigorous and objective examination and implementation of migration policies difficult in both Japan and Taiwan. At the same time, an honest and critical examination of refugee protection in both countries is neither a mere academic exercise nor is a topic relating to issues relevant only outside of their borders. For example, in February 2023, reports emerged of local residents of Japan’s Okinawa Prefecture, the island groups closest to Taiwan, planning to undergo evacuation drills in case of a Chinese invasion of Taiwan. In such a scenario, official plans indicate that authorities would evacuate around 20,000 local residents to Japan’s main southern island of Kyushu each day, by air and sea (United Daily News, 2023). Evacuation would begin from the Sakishima Islands, which include the country’s westernmost inhabited island located just over 100 km away from Taiwan. Although the news report does not raise this explicitly, it can be assumed that while local residents of Sakishima are evacuated, Taiwanese refugees would seek safety by sea, potentially trying to reach Sakishima.

The international protection regime for refugees is in many respects accepted in Taiwan and Japan as a diplomatic sign of being a responsible global player. To fully align with the protection regime, this chapter concludes that Japan and Taiwan must go deeper to the foundational aspects of society, offering genuine protection and creating an environment where displaced individuals can thrive. This means creating an environment where individuals are not only free from fear and the political persecution that forms the current definition of a refugee in international law, but also one where the person is free from want and enjoys freedom of speech and belief—the Four Freedoms that conceptually underpin the Universal Declaration of Human Rights (UDHR). On 10 December 1948, member states of the newly formed United Nations (UN) General Assembly met in Paris and adopted the UDHR. The declaration’s Article 14(1) sets out that “everyone has the right to seek and to enjoy in other countries asylum from persecution”.

The Refugee Convention of 1951 (the “Convention”), as an international treaty, gives legal effect to this right for individuals to seek asylum. It defines, in Article 1(A)(2), a refugee as someone who needs to access this international protection system “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”. A tension is presented in that while an individual has the right to seek asylum, the state is not obliged to grant it (Goodwin-Gill, 1982). This is certainly also true for states that have ratified both the Convention and the 1967 Protocol Relating to the Status of Refugees (the “Protocol”) that broadened the Convention’s scope of application by removing the geographical and temporal limits that restricted it to post-war Europe. States parties can also, in reality, not accept a significant number of refugees, as in the case of Japan. In this context, the Convention and Protocol, despite their universal applicability, exemplify that ratification “seems to be more of a matter of promoting and protecting national interests rather than protecting the rights of refugees … in an ‘institutionalisation-implementation gap’” (Betts & Orchard, 2014, as in Choi, 2019, p. 164).

Asia–Pacific is not only the world’s most populous region, but it also has the largest regional refugee population. In 2019, according to the UN (2020), the Asia–Pacific hosted 7.8 million refugees and people in refugee-like situations, accounting for 38% of the global refugee population. However, the region also has the lowest percentage of countries that have ratified the Convention and Protocol—only 20 out of 48 (Venturi, 2021). Non-ratification countries include Vietnam, Laos, Thailand, Myanmar, Bangladesh, Nepal, India, Pakistan, Brunei, Indonesia, Malaysia, Singapore, North Korea, and Mongolia, whose current governments have not shown any plan towards an eventual ratification. Another common approach in the region is for states to ratify and formally become state parties to the Convention, but then to restrict the domestic implementation of the Convention in such a manner as to offer little protection in reality for those seeking asylum. Japan ratified the Convention and Protocol in October 1981 and January 1982 respectively, and is one of the most important donors to the UN Refugee Agency (UNHCR). Japan, however, has adopted a strict definition of refugees in its asylum process and has granted refugee status to just over 1% of asylum applications during the 40 years from the ratification of the Convention until 2021.Footnote 1

The road forwards for Taiwan in its relationship with the Convention is less clear than either of the options above. Since 1971, Taiwan has existed outside the UN system. It cannot formally become a state party to international treaties, but this doesn’t preclude the possibility that Taiwan may hold itself bound to the Convention and commit to the implementation of the treaty domestically, as if it were a state party. Taiwan used a unique procedure for incorporating the two international human rights covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), into its domestic law in 2009 (Chen, 2019). Taiwan can do the same for the Convention. In May 2022, the administration of the Democratic Progressive Party (DPP) President Tsai Ing-wen released the country’s first National Human Rights Action Plan (NHRAP). Among the eight major human rights priorities identified by the plan was the goal for the government to review Taiwan’s refugee protection policies and establish legislative and administrative asylum procedures by 2024 (Executive Yuan, 2022a; Executive Yuan, 2022b; Focus Taiwan, 2022). As it currently stands, the plan does not stipulate if the commitment is to eventually lead to Taiwan legally incorporating the Convention into a national asylum law, or whether it would remain outside the international framework for the protection of refugees.

This chapter examines the current situation of refugee protection in both Japan and Taiwan through an analysis of primary sources (law and policy documents), civil society reports, academic articles, and news reports. For the Taiwanese context, because the island lacks formalised procedures for dealing with asylum seekers, our analysis benefits from detailed discussions with one former member of the Taiwan Association for Human Rights (TAHR) who was engaged in refugee work in Taiwan. For the discussions on Japan’s refugee protection regime, a particular focus is the gap between the international standards in the protection of asylum seekers and refugees and its domestic implementation. These challenges are also present in the Taiwanese context. Since promoting human security is an important aspect of Japan’s foreign aid policy and official development assistance (ODA), this chapter uses a human security lens to examine some common challenges in both of these jurisdictions. The chapter concludes with reflections on the potential and the limits of law, if state parties like Japan do not implement the spirit of the Convention domestically, and if countries like Taiwan continue to address refugee protection without an established legislative framework. Implementing a human security lens for refugee protection that promotes equitable and human-centric solutions in Japan, Taiwan, and elsewhere, requires strong public support.

Externalisation of Refugee Protection in Japan

Japan’s relationship with the international refugee protection regime is marked by dichotomy. Japan, a state party of the Convention and Protocol, contributed US$167.7 million in 2022 alone, making it the fourth largest government donor to the UNHCR, after the US, Germany, and the European Union (UNHCR, n.d.a, n.d.b). UNHCR (n.d.c) stated that the consistent support of Japan over the years to global initiatives, such as the Sustainable Development Goals, human security, and the humanitarian-development-peace nexus, made the country “unquestionably … a key supporter of refugees and displaced people”. The generosity of the Japanese government in providing funding to the UNHCR, however, stands in sharp contrast to its poor record of granting refugee status to those who seek asylum in Japan. Refugee protection is frequently treated by the government as a distant issue. In his speech at the UN Summit for Refugees and Migrants, held in New York in 2016, then-Prime Minister Shinzo Abe highlighted Japan’s efforts in assisting Syrian refugees in Turkey and Jordan through the country’s ODA. He announced Japan’s commitment, “as an advocate of human security”, in providing a humanitarian package of about US$2.8 billion in assistance to refugees, migrants, and host communities in the Middle East (MOFA, 2016). It was notable in these remarks that Abe did not once mention refugees and asylum seekers in Japan. In the following year, the UNHCR criticised Japan for its low asylum acceptance numbers and urged the country to do more for refugee protection (Wilson, 2017).

Refugee Definition “by the letter, if not [the] spirit”

Behind Japan’s strict asylum process is a unique definition of refugees. Following a very narrow interpretation of the Convention, the asylum process requires applicants to prove that they are individually targeted and persecuted in order to be recognised as refugees (JAR, 2017). Belonging to a persecuted group or fleeing a war or conflict alone is often not considered as a basis for refugee recognition. Japan’s narrow definition of the term refugee means that individuals who would have been recognised as refugees by other countries or the UNHCR might not be granted refugee status in Japan. Providing evidence of individual persecution is extremely difficult or impossible for many people who flee their home countries in crisis situations, resulting in poor success rates of asylum applications (JAR, 2017). Therefore, as Saburo Takizawa, the former representative of UNHCR Tokyo Office, described, most refugees are excluded from Japan’s very narrow definition of refugees, underscoring that Japan abides “by the letter, if not [the] spirit” (Chan, 2018) of the Convention.

The strict definition of refugee means that Japan does not recognise individuals fleeing the Russian invasion of Ukraine as refugees. In Japan, Ukrainian people who fled the war are officially referred to as hinanmin, literally meaning “evacuees” instead of nanmin, the term used for refugees. Compared to individuals fleeing wars and conflicts in other countries such as Syria and Myanmar, the Japanese government showed generous support to Ukrainian hinanmin. Just over a month after Russia’s invasion began, in February 2022, Japanese Foreign Minister Yoshimasa Hayashi visited Poland and came back to Japan with 20 Ukrainian “evacuees” on a government plane to show Japan’s support for the war-torn country (Nikkei Asia, 2022). The government made a number of special arrangements to speedily admit evacuees from Ukraine to Japan and to allow them to switch their visa to ones that permit work and study. Local authorities, businesses, and educational institutions joined the government initiatives to assist Ukrainian evacuees, offering a wide range of support, including help with language learning, employment, and free or subsidised accommodation.

As of March 2023, over 2360 Ukrainians had arrived in Japan, according to official information from the Japanese government (ISA, n.d.b). To place Japan’s low asylum acceptance numbers into a comparative perspective, the number of Ukrainian “evacuees” who were accepted in less than one year is more than double the total number of refugee statuses granted by Japan since it ratified the Convention in 1981. Ukrainian evacuees were admitted to Japan without going through the lengthy and complex refugee application process. Conditions for entry of Ukrainian evacuees were relaxed, for example, compared to those for Afghans seeking asylum after the Taliban’s takeover in 2021. Naoko Hashimoto, an academic and a refugee examination counsellor for the Ministry of Justice (MOJ), explained that “there are political and geopolitical factors behind this special treatment”, with the Prime Minister Fumio Kishida committing to work alongside other Group of Seven (G7) countries on supporting Ukraine (Itakura, 2022).

Similar to the arrangement with Ukrainian evacuees, there was another time when Japan opened its doors to those fleeing a conflict. Following the Vietnam War, in the late 1970s over 11,000 Indochinese refugees from Vietnam, Laos, and Cambodia resettled in Japan (Koike, 2011). With the outbreak of the Indochina refugee crisis, there was increasing international pressure on Japan as the world’s then-second richest country, along with domestic public support, to help refugees (Havens, 1990). In response to this pressure, the Japanese Cabinet made an agreement, specifically for accepting Indochinese refugees in 1979, rather than coming up with a comprehensive policy on the treatment of asylum seekers fleeing any wars and conflicts (Flowers, 2008). This experience of accepting Indochinese refugees led Japan to become a state party to the Convention in 1981 and to amend its immigration law to the Immigration Control and Refugee Recognition Act (the “Immigration Control Act”) in the following year.

To understand the rationale behind these policy decisions, Flowers (2008) analysed the conflict between the Ministry of Foreign Affairs (MOFA) and the MOJ, the two state departments deeply involved in discussions on the ratification of the Convention. While the MOFA strongly recommended Japan’s ratification to promote good relationships with Western governments who were diplomatically important to Japan, the MOJ strongly resisted, based on an objection to abolishing citizenship requirements for social welfare programmes and owing to potential social disruption to the “homogeneous nation” (Flowers, 2008). Ratifying the Convention and amending domestic immigration law, however, did not mean that Japan would continue to open its doors to people who sought asylum, the same way it did for Indochinese refugees. Even after becoming a state party to the Convention in 1981, the MOJ, as the responsible ministry for the asylum determination process, continued to operate with its traditional attitude of control towards foreign nationals, based on its primary responsibility to protect Japan from irregular immigration, rather than embracing the norms and spirit of the Convention.

Control Over Protection

Under the Immigration Control Act, all asylum applications are handled by the Immigration Services Agency (ISA) under the MOJ. Although the agency uses the term “immigration services” in its English name, the original Japanese name Shutunyukoku Zairyu Kanri-cho literally translates to “immigration and residence control agency”. The names of the law and the competent authority that govern the asylum process imply Japan’s predominant focus on the “control” of foreign nationals entering and residing in the country, viewing refugees as subjects to control rather than as rights holders to protect. Some argue that Japan’s ratification of the Convention followed the country’s strategy to strengthen immigration control and that this strategy has largely succeeded. Koike (2011) contends that Japan, in fact, used the Convention to strengthen its border control by applying the strict interpretation of the Convention to define refugees. This “control over protection” approach is perpetuated in the restrictive asylum process despite a number of amendments to the domestic law and the asylum process.

Since the Immigration Control Act came into force in 1982, and until the first amendments of the asylum process in 2004, the so-called “60-day rule” prevented displaced individuals from applying for asylum 60 days after arriving in Japan or after learning of a change in circumstances in their home countries. This meant that even those who were recognised as refugees would not automatically be granted legal status to reside in Japan, if they did not comply with the rule (Ishikawa, 2021). It was only when the rule was abolished in 2004 that the “permission for provisional stay” was introduced to allow asylum applicants without legal residency in Japan to temporarily remain, so they would not be subject to deportation before their cases concluded. While some improvements were made, Japan’s asylum process continued to lack key elements to ensure fairness, such as access to legal support, high-quality and independent interpreters, transparency on decision-making, and an independent appeal process (Flowers, 2008). The Japan Association for Refugees (JAR) (n.d.) has criticised current practices on the grounds that the asylum determination process is highly opaque in comparison to international standards.

From Control to a Rights-Based Policy?

A clear opportunity to further strengthen the control came when the Diet, Japan’s national legislature, passed an immigration reform bill to amend the Immigration Control Act in June 2023. The controversial bill was enacted after the Cabinet submitted it to the Diet in March 2023. The amended law allows the government to deport asylum seekers with pending third applications or subsequent appeals if the ISA does not recognise adequate justification. It also makes deportation of first-time asylum applicants possible if they have been sentenced to imprisonment for three or more years or are suspected of being involved in terrorism or similar activities (ISA, n.d.c). The provisions of this amended law mirrors a similar bill debated in the Diet in 2021 which was withdrawn after facing strong criticism from the opposition, civil society, and the international community. This followed the high-profile in-detention death of a Sri Lankan undocumented woman who was denied adequate medical care (Amnesty International, 2023). The UNHCR (2021) had criticised the earlier bill and now the amended Immigration Control Act for contravening both international norms for refugee protection and the principle of non-refoulement, whereby states are prohibited from forcibly returning any individual who would be at risk of irreparable harm upon return.

As the amendment bill made its way through the Diet, several UN human rights experts, including the Special Rapporteur on the human rights of migrants, raised concerns that “the new amendment bill would maintain a system based on a presumption of detention”, and that detention is considered to be arbitrary without a maximum period of detention and periodical judicial reviews of continued detention (Morales et al., 2023). Another concern raised by the UN human rights experts, members of the opposition, and civil society organisations is the introduction of “monitoring measures” that would permit asylum seekers who are given detention orders to live outside detention centres but under monitoring and supervision of private actors, such as NGOs, supporters, and family members (Human Rights Now, 2023). These new measures include penalties for those who supervise individuals on release, if they fail to report as required by the ISA, creating and normalising citizen-to-citizen surveillance (Tokyo Shimbun, 2023).

As the debate over the immigration reform bill increasingly attracted public attention in late March 2023, the Japanese government released guidelines on refugee recognition for the first time. The guidelines included gender and sexuality related persecution as terms for consideration and noted that fear of persecution cannot be denied only because the individual is not personally persecuted, while “realistic risks” of persecution must be proved in order for the individual to be considered for refugee recognition (ISA, 2023). While the efforts for improved transparency and what appears to be a possible change in Japan’s narrow definition of refugees were welcome, it is notable that the Justice Minister Ken Saito stated in a press conference that the handbook “does not expand the scope of recognition” and is not aimed to “increase the number of people granted refugee status” (MOJ, 2023). Whether the government will re-consider asylum seekers whose applications were rejected prior to the introduction of the guidelines remains unclear.

Taiwan: Civil Society’s Longstanding Quest for an Asylum Law

As noted by the editors and other authors in the book, Taiwan currently does not have a national asylum law. Taiwan also operates without an established legislative or administrative framework for refugee protection or for asylum determination. Procedures concerning refugee protection are ad hoc, with official support services rarely provided for those seeking asylum in Taiwan (Former TAHR representative, personal communication, February 2, 2023). Nevertheless, the history of modern Taiwan is not removed from a history of population displacement and resettlement. For example, individuals of Myanmarese origin or descent represent one of Taiwan’s largest minority groups, estimated at around 40,000 (Prentice, 2017). After the Chinese Civil War, in the 1950s and 1960s, Chinese Nationalist troops who retreated to Thailand and Myanmar continued to fight against the Chinese Communists by launching periodic border incursions (Chang, 2001; Clymer, 2014; Qin, 2015). While some soldiers and their families were eventually evacuated to Taiwan, others stayed in Southeast Asia and did not enjoy the rights of citizenship of their adopted lands (Cheung, 2019; Qin, 2015). Their descendants, however, could come to Taiwan for language and cultural exchange programmes and, until 1999, could be granted Taiwanese citizenship. When this policy was changed, civil society organisations in Taiwan, including the Thai–Myanmar Chinese Refugee Rights Association, strongly criticised the move. Civil society was subsequently successful in advocating for this stateless population, with its close ties to Taiwan, to be allowed to stay and obtain Taiwanese citizenship after a residency of three years (Cheung, 2019).

Refugees and National Security

In Taiwan, concerns over national security vis-à-vis China, facilitated by a perceived backdoor of espionage through a humanitarian refugee programme—especially as Beijing intensifies its rhetoric of invasion—have long stymied efforts to establish a national asylum system. While these concerns are often raised in contemporary domestic discussions on Taiwan offering some form of protection for individuals fleeing China and Hong Kong, they are not new. Taiwan, owing to its status outside the UN system and under threat of takeover by China, exists under a heightened sensitivity to national security. A significant part of Taiwan’s population has vivid family histories of forced migration, with families arriving in Taiwan from mainland China in difficult post-conflict situations brought on by the Chinese Civil War. For Taiwan, the issue of refugee protection, especially for individuals who come from communities that have some link to mainland China, however removed, has a historical background of conflict, mistrust, and questions of political loyalty. This was seen in the treatment of exiled Tibetans decades ago, along with political dissidents from China and the recent arrivals of Hong Kongers.

Exiled Tibetans in Taiwan present a thorny category for the government. Because the Chinese Nationalist leadership that retreated to Taiwan harboured ambitions of retaking China and considered Tibet to be a part of China, many Tibetans viewed the early Taiwanese policies, towards them and towards the Tibetan Government in Exile, with little enthusiasm (Tethong, 2018, p. 64). A small number of exiled Tibetans came to Taiwan and settled during the Cold War, but the vast majority of exiled Tibetans arrived under a state-sponsored programme for vocational and educational training from 1980 to the late 1990s (Pan, 2015, pp. 47–48). This programme provided short-term training for exiled Tibetans aged 16 to 35, with the aim of improving their economic situation, while also showcasing Taiwan as an ally of Tibet (Pan, 2015). During this time, the competent authority for processing the applications of exiled Tibetans for training was moved from the Ministry of the Interior to the Ministry of Foreign Affairs, and Tsering (2022b) noted that treating exiled Tibetans as foreigners or refugees in Taiwan, instead of being overseas Chinese, was a significant policy development. Nevertheless, reflecting their ambiguous status in Taiwanese society, Tibetans in Taiwan are often described as being treated as “neither compatriot nor refugee” (Kironska, 2022; Pan, 2015; Tsering, 2022b).

The cases of the neither-compatriots-nor-refugees Tibetans in Taiwan, the former soldiers of the Chinese Nationalists in Myanmar and Thailand, and their stateless descendants are complex legacies of the Chinese Civil War. Chinese Nationalists lost to the Chinese Communist Party and retreated to Taiwan in 1949, but the ripples of the loss have had a far reach. To fully understand the localised refugee context for Taiwan, one must recognise that the legacy of the Chinese Civil War runs to the present day. Concerns over the national security of Taiwan are not rhetorical but are the ever-present undercurrents that have long stymied efforts to set up a national asylum system. In May 2021, a man from Fujian Province in Southern China sailed through the heavily patrolled Taiwan Strait in his claimed pursuit of freedom and equality in Taiwan. In the immediate aftermath of the crossing, Taiwan’s military leaders were quick to doubt the man’s intentions and version of events, while assuring the public that the man’s successful crossing did not reveal shortcomings in the island’s maritime defences (Davidson, 2021). This case exemplifies the challenge of refugee protection for Taiwan, particularly in the way perceived national security breaches took top billing in the news reports of this crossing from China.

It is not unexpected that Taiwan’s attention on political asylum, while being framed by national security, is heavily focused on China. National security concerns for the survival of Taiwan have long complicated domestic discussions on granting asylum, whether or not the measures are rational and justifiable. For instance, security concerns and distrust of individuals seeking political asylum from China have remained, despite marriages between Taiwanese and Chinese nationals representing more than 60% of all registered marriages between a Taiwanese national and a foreign spouse from 1987 to 2022.Footnote 2 Taiwan started to receive applications of Chinese nationals seeking asylum via irregular migratory routes after 2000, with the first of such asylum cases received by TAHR being that of Tang Yuanjun who was later resettled in the US (Chiu, 2018, p. 157; TAHR, 2002). After Tang, other Chinese dissidents, such as Chen Rongli and Yan Peng, who sought asylum in Taiwan after 2004, were not able to be resettled in a third country and stayed in Taiwan on a succession of three-month visas (Chiu, 2018). During this time, they could not work or enrol for national health insurance. After ten years of waiting, they received their permanent residency and their right to work in Taiwan (Chiu, 2018).

In recent years, Hong Kong residents arriving in Taiwan to escape political crackdowns have brought awareness of the issue of refugee protection to the forefront in Taiwan. While many Hong Kongers may have been attracted by the geographical and cultural proximity of Taiwan to Hong Kong, many were eventually left disappointed by the difficulty of meaningfully integrating into Taiwanese life and society. When individuals fleeing political crackdowns in Hong Kong first arrived in Taiwan in 2019, the Taiwanese government relied on ad hoc measures, such as extending their residency visa on a monthly basis, which severely limited their ability to integrate into Taiwanese life (Nachman & Hioe, 2019). While the situation improved in 2020, the same year that Hong Kong’s National Security Law was introduced, Taiwan set up a dedicated Taiwan–Hong Kong Service Exchange Office to assist individuals from Hong Kong and Macau to resettle by making it easier for them to study and work in Taiwan (Hale, 2023).

Serious problems and sensitivities remain. Foremost is the concern over irregular entries into Taiwan, as underscored by separate cases of Hong Kong activists trying to reach Taiwan via boat crossing. While Article 14 of Taiwan’s Laws and Regulations Regarding Hong Kong and Macao Affairs requires legal entry into Taiwan or residency of valid duration (i.e. no overstay), this strict prohibition is difficult to maintain in light of the humanitarian imperative and the deteriorating political situation in Hong Kong. The Taiwanese government is walking a tightrope on asylum seekers from Hong Kong, not wanting to escalate tensions with China while seeking to uphold its democratic values. In recent years, more legislative voices have stressed the advantages of a low-key and unofficial system to provide refuge and assistance to political dissidents from China and Hong Kong. Legislator Wang Ting-yu of the DPP in Taiwan stressed in 2020 that Hong Kong activists have already reached Taiwan through “unofficial” channels, without “need[ing] to beat a big drum” and put the government in the spotlight (Jennings, 2020). While discussions on how Hong Kongers can seek asylum in Taiwan remain unresolved—obstructed and complicated by national security concerns that mark all matters—the prolonged unclarity and Taiwan’s immigration labyrinth have driven some Hong Kongers to leave, citing the impossibility of integration. Others have stayed in “an imperfect exile” in Taiwan (Lai & Wu, 2022).

National Human Rights Action Plan and Refugee Protection

Reacting to persistent civil society criticism that Taiwan needs a formalised asylum system, Taiwan’s Executive Yuan released the country’s first NHRAP in May 2022, which identified eight key human rights priorities. Among these priorities was an official commitment on refugee protection. The plan called on Taiwan to codify legal mechanisms for refugees to seek asylum and to clarify related application procedures (Executive Yuan, 2022b). This development was a significant moment for Taiwan civil society’s longstanding advocacy for a national asylum law, to better set out the legislative and policy framework for refugee protection. Nevertheless, the NHRAP does not commit Taiwan to legislate an asylum law. It also does not indicate if the official commitment is to eventually lead Taiwan to legally incorporate the Convention and Protocol into a national asylum law, in the same way that both the ICCPR and the ICESCR were incorporated into Taiwan domestic law in 2009 (Chang, 2019). Current advocacy by Taiwanese civil societies for the government to abide by the principle of non-refoulement and the Convention on Torture—without specifically pushing for Taiwan to incorporate the Convention into the domestic legal framework—suggests that the Convention is not regarded as an advocacy priority (Former TAHR representative, personal communication, July 12, 2023). Though important as an international legal instrument, the Convention is seen by some advocating organisations as outdated (Former TAHR representative, personal communication, July 12, 2023).

However Taiwan evolves regarding its relationship with the Convention and the broader issue of addressing the challenge of protection for individuals exercising their fundamental right to seek asylum, the country cannot ignore the urgency for reform. Its current asylum situation is already more complicated than the established landscape of national security and refugee protection that Taiwan is perhaps more attuned to. Beyond cases from China and Hong Kong, Taiwan has already received asylum seekers from Syria, Turkey, Uganda, South Korea, and Egypt, but there are no official statistics released on asylum seekers and applications (Kironska, 2022). For instance, TAHR only finds out about asylum seekers who have arrived in Taiwan from the media or through government contacts. From 2013 to 2017, TAHR counted 40 such cases in Taiwan but this information is not confirmed by the government (Former TAHR representative, personal communication, April 13, 2023). A first draft asylum law was sent for reading in the Taiwanese legislature in 2005. Since then, other versions were also submitted in 2011 and 2012 and were discussed in public hearings but did not proceed further under the previous administration. The latest attempt was in 2016, under the new DPP administration of President Tsai Ing-wen, but that too failed to gain traction within the Parliament past initial readings (Kironska, 2022, p. 246).

Common Challenges for Integration and Human Security

Notwithstanding the fact that Japan and Taiwan are in different situations with respect to the Convention—one is a state party while the other is not and has made no indication that it will consider holding itself bound by the Convention—the most notable point of comparison is the importance of refugee assistance in the foreign policy of both countries. Besides its significant contributions to the UNHCR, Japan’s foreign aid assistance to humanitarian projects supporting the protection and integration of displaced populations, refugees, and internally displaced people, is a central prong of its overseas development strategy. This is largely a legacy of Sadako Ogata, the Japanese diplomat and respected academic who served as the UN High Commissioner for Refugees from 1991 to 2000 and continued to be a strong advocate for human security after stepping down from leading the UNHCR. She later served as the Co-Chair of the UN Commission on Human Security and the President of Japan International Cooperation Agency, and supported the use of ODA to help solve the problems of displacement, reconstruction, and reintegration.

Compared to Japan’s ODA, Taiwan’s overseas development work does not have the same emphasis on human security, with the theme of human security scarcely featuring in Taiwan’s annual International Cooperation and Development Reports. In the latest report by Taiwan’s Ministry of Foreign Affairs, called the International Cooperation and Development Report of 2020, human security appeared twice and only in the context of material donations to a policy research centre and funds on human security (MOFA Taiwan, 2021). Taiwan’s ODA for work with refugees only appeared in Turkey, Jordan, and Thailand (MOFA Taiwan, 2021, pp. 18, 26, 29, 33). Taiwan simply does not prioritise human security to the same degree as Japan in its ODA. This, however, does not mean that refugee protection does not feature in Taiwan’s foreign policy or is absent from considerations about how Taiwan wants to be seen domestically and externally. For example, the draft asylum law that was previously read in the Taiwan legislature in 2016 spoke of this desire for Taiwan to be seen as a responsible global player on human rights and refugee protection, citing the asylum procedures and laws of the US, UK, Canada, Japan, and South Korea and other countries to support the case that Taiwan should also have a national asylum law (Legislative Yuan, 2016).

Ad hoc Refugee Protection, with or without the Refugee Convention

Beyond the external layer of diplomacy, however, is a more complicated situation concerning domestic support for refugee protection. Both Japan and Taiwan appear to prefer an ad hoc approach to refugee protection, and the Convention features lightly in both contexts. In the case of Japan, this has allowed it to decide which group can receive preferential treatment, while the asylum determination for others must adhere to a very strict interpretation of a refugee under the Convention. In contrast, Taiwan’s process on asylum determination and refugee protection is by default ad hoc and is not established by any law or administrative procedure. While Taiwan’s inaugural NHRAP commits the government to codify legal mechanisms for refugees to seek asylum and to clarify related application procedures, it is not clear on whether the government will consider holding itself bound as a state party to the Convention.

The externalisation of the refugee problem by both Japan and Taiwan means that, when refugee protection becomes a domestic issue, policy-setting around this topic, from debates over the ratification of the Convention (as in the case of Japan) or whether to legislate a national asylum law (as in the case of Taiwan), is driven by domestic political considerations and influences. Practically, this means that, like any foreign nationals in most countries, asylum seekers are not part of the electorate at the national level and their rights protection does not dominate press coverage. Politicians are rarely incentivised to speak up on issues of migration, especially during election years. This tension is underscored by the fact that discussions on the protection of refugees, even though the issue is one out of the eight human rights priorities set by Taiwan’s inaugural NHRAP that was only released in 2022, hardly featured in the midterm election that took place later in the same year. Likewise, a 2017, 300-page edited volume of academic studies on the Taiwan voter contained not one reference to refugees or asylum seekers (Achen & Wang, 2017). This is not unexpected. Affirming the benefits of migration is often not a popular electoral issue, in Taiwan, Japan, or other countries of destination.

The tension between refugee protection as an external diplomatic tool and domestic implementation of the spirit of the Convention is exemplified by Japan’s efforts on refugee resettlement. In 2010, Japan acknowledged the importance of “burden sharing” refugee resettlement worldwide and launched a pilot refugee resettlement programme, the first in Asia to do so (MOFA, n.d.). The programme, however, was only open to a specific preferred group of refugees deemed to be best suited for Japan. As recorded by the Cabinet Secretariat of Japan (2008), the government set a requirement that refugees resettling in Japan must be Karen refugee families in Thailand’s Mae La camp, who supposedly “have the ability to adapt to Japanese society and would be able to have a job to earn their own living”. The government planned to resettle 90 refugees over three years. In reality, however, only 45 refugees were involved in the three-year pilot programme due to a limited interest from the Karen group in question; some initially considered resettlement in Japan but withdrew as they felt uneasy about their future in Japan (Takizawa, 2015). After the pilot period, the Japanese government later changed the targeted groups to Myanmarese refugees in Malaysia and the relatives of those who had resettled from Thailand in the pilot programme. A total of 250 refugees have resettled in Japan over 13 years, as of April 2023 (MOFA, 2023).

Ager and Strang’s (2004) “Indicators of Integration” describe employment, housing, education, and health as markers and means for the achievement of integration. Depending on the groups of refugees (or evacuees) or individual cases, refugees experience these four indicators very differently in both Japan and Taiwan, especially compared to Ager and Strang’s ideal scenario of integration. A comprehensive integration support system—informed and co-produced by all stakeholders, including national and local authorities, NGOs, experts in refugee protection, local communities, and refugees themselves—must be provided to asylum seekers. UNHCR’s (2002) guideline clearly states that “‘integration potential’ should not play a determining role in the consideration of protection resettlement cases”. The criteria set by the Japanese government for the resettlement programme, which emphasises cultural adaptability and employability, reflects the government’s desire to minimise both social and economic costs (Takizawa, 2015) while improving Japan’s image in the international community (Koike, 2011). It overlooks the state’s responsibility to ensure a comprehensive support system for refugees, regardless of their abilities and qualifications, to integrate into their host society.

Human Security Risks for Asylum Seekers

The integration process is made even more difficult for refugees, in Taiwan, owing to the absence of a national asylum law. Asylum applications and related services are considered on an ad hoc basis and are not framed as a state duty in Taiwan. This can give rise to varying outcomes in the asylum determination process, ranging from receiving some support and temporary residency to deportations that potentially violate the principle of non-refoulement (Kironska, 2022). While the asylum cases are pending and considered on a case-by-case basis, Kironska (2022) noted that the majority of asylum seekers in Taiwan need to rely on civil society groups for assistance, such as for accommodation, medical treatment, and psychological counselling. The same point was made by Pan (2015, pp. 41–42) who noted, in the broader context of the protection of refugees and displaced people worldwide, that they “are also subjected to arbitra[ry] and discriminatory treatment through government policy [or the absence of such policy], even though they are entitled to fundamental human rights under international law”.

In contrast to Taiwan, Japan has an established legislative and administrative framework to deal with asylum applications. It, however, focuses more on immigration control than on refugee protection, negatively impacting the human security of individuals seeking asylum. From the point of arrival in Japan, asylum seekers often face financial difficulties and lack of access to daily necessities, such as food, clothing, shelter, or access to health care. Those facing destitution while their asylum cases are being assessed can apply for welfare assistance, which is around two-thirds of the usual welfare benefits available to long-term residents or Japanese citizens, and it is often a time-consuming process (JAR, n.d.). Asylum seekers with legal status can switch their status to be permitted to work temporarily only when their cases are considered to have a “high likelihood” of refugee recognition (MOJ, n.d.). Precarity and uncertainty can continue for many years, since the asylum process, on average, takes up to three years to be determined and, in some instances, ten years (Tamura, 2020). Additionally, welfare assistance for asylum seekers is now limited to only those who are first-time applicants (Ishikawa, 2021).

The situation is much more difficult for those who are seeking asylum as undocumented migrants in Japan, because they are not allowed to work, do not have access to social protection—including national health insurance—and can be subject to detention. Although some are given provisional release from detention depending on their circumstances, without access to work or welfare assistance they must rely on their social network and charitable civil society assistance, as in the case of asylum seekers in Taiwan. The strict and lengthy asylum process, combined with lack of access to work and social welfare, means that many asylum seekers in Japan are highly vulnerable to destitution, poor health, and exploitation. In 2021, a Japanese NGO surveyed 141 individuals, who were given provisional release from detention, on their life conditions (Kitakanto Iryo Sodan Kai (AMIGOS), 2022). Results showed that 65% of those surveyed said they felt it was “very difficult” or “difficult” to afford meals. Health care was also raised as a very serious concern. Survey results indicated that 84% experienced having to give up visiting medical facilities due to financial constraints (AMIGOS, 2022).

Arbitrary and indefinite detention of asylum seekers, and detention conditions, also present significant risks of human rights violations. In 2023, Amnesty International reported that the organisation had interviewed some migrants and asylum seekers in Japan who were held in detention for several years. The detainees reported that they were “treated like animals” and “the only way to get out of the immigration detention centre was to get sick or go on a hunger strike to the point of death” (Amnesty International, 2023). Previously, in August 2020, the Working Group on Arbitrary Detention of the UN’s Human Rights Council adopted opinions recognising two cases of asylum seekers from Turkey and Iran who were detained several times—with the longest detention period of three or more years in the examined cases—stating that the detention was arbitrary and in violation of the fundamental human rights of the asylum seekers. One of them experienced physical abuse and both did not receive adequate medical care in detention, resulting in the deterioration of their physical and mental health. The Working Group concluded that the asylum seekers had the right to receive compensation and that Japan had breached its state duty to respect human rights (UN Human Rights Council, 2020).

Dasgupta (2022) highlights that Japan’s immigration policy, including its refugee policy, is a typical example of a utilitarian-functional type of policy that looks at foreign nationals through a cost–benefit analysis, treating groups of migrants differently based on their “usefulness” to society, and placing most refugees in the least desirable ranks. The response of Japan to Indochinese refugees, the resettlement programme, or Ukrainian “evacuees” implies that the government prefers to apply ad hoc asylum arrangements to particular groups when it suits the country’s political and diplomatic agenda, while continuing to impose strict controls on other asylum seekers. The same criticism can be levied against Taiwan. The situation of Tibetan refugees in Taiwan exemplifies this complexity for Taiwan, which contrasts the government’s intent to be seen as a globally progressive, human rights-abiding country, with political concerns of national security. This is combined with the weight of historical baggage from the Chinese Civil War, which resulted in population displacement and distrust amidst groups that once fought. This led one Tibetan scholar in Taiwan to openly ask, “Who are [the Tibetan diaspora in Taiwan] and why they are invisible?” (Tsering, 2022a, 2022b).

Tsering (2022a, 2022b) points to the case of Tibetans who entered Taiwan for vocational and educational training from 1980 to the late 1990s as the most disadvantaged minority group in Taiwan. While Tibetans who arrived in Taiwan under this vocational and educational scheme could be an example of yet another utilitarian-functional type of policy that assesses foreign nationals based on their perceived “usefulness” to the host society, such recognition of their “utility” is not a constant, immune from policy changes, and does not qualify as a fulfilling and safe vocational and employment situation. In 1993, Taiwan’s vocational and educational training programme for Tibetans came to an abrupt end as Taiwan formally excluded exiled Tibetans from the status of legal workers under the Employment Services Act (Pan, 2015). Already, before the change in the law that excluded exiled Tibetans from the scope of the Employment Services Act, many of the Tibetan vocational and educational scheme participants in Taiwan absconded from their assigned vocational training due to arduous and unsafe working conditions (Pan, 2015). They became undocumented migrants and faced difficulties in Taiwan that made their lives more precarious than their refugee period in South Asia.

In 1999, a group of undocumented Tibetans petitioned the Taiwanese government and described their lives of insecurity:

Although we did not have nationality in India or Nepal, we were refugees and at least were admitted as legal foreigners. In Taiwan, however, we still do not have nationality and even worse have become illegal. We cannot go back to our family in India or Nepal because we have no passports. Thus we are trapped and have to live the past decade in fear and with little protection. We can only do odd jobs; we cannot ask for medical help even when we need it; we are afraid of the police in the streets, as we cannot explain to people clearly our absurd situation. We cannot seriously develop a relationship because it is impossible to have a legal marriage under such circumstances. (Pan, 2015, pp. 49–50)

This testimony underscores how immigration policy, including refugee policy, that leans on utilitarian-functionality to assess the usefulness of foreign nationals, can bring about significant human insecurity and rights violations. When government acceptance of their usefulness shifts, or when the label of usefulness is a mere cover for an exploitative labour reality, this can bring economic hardship and human rights abuses for the affected individual. Stating the obvious, human rights abuses can happen even in hosting countries, such as Japan and Taiwan, which are not conflict-affected areas.

Despite the external appearances of both jurisdictions being very different when it comes to refugee protection—one is a party to the Convention while the other is not (nor considers itself bound to the Convention despite being outside the international intergovernmental system)—there are more similarities than differences. For both countries, refugee assistance serves a diplomatic purpose, by promoting the country’s contribution to externalised refugee issues, rather than implementing the international norms and spirit of refugee protection in their own territories. There are, however, differences. Human security features officially and prominently in Japan’s ODA in a way that is not seen for Taiwan. Diplomatic concerns in terms of national security are also more pronounced for Taiwan than they are for Japan, since the issue of refugee protection for Taiwan is tied to the thorny question of how to address genuinely those fleeing political unrest from Hong Kong and Mainland China, without being perceived as opening a backdoor to facilitate espionage.

Conclusions

Japan and Taiwan, two countries connected by geography and history, are at an intersection for how they want to engage domestically with refugee protection, beyond it being an issue of humanitarian assistance and foreign aid. In March 2023, Japan released national guidelines on refugee recognition. This is a notable first for Japan, which has consistently faced criticism that it accepts a much lower number of refugees than it should. Similarly, the question of how Taiwan will offer asylum has become ever pressing, with a growing international spotlight on the island’s lack of a national asylum law and its acceptance of very few refugees in reality. The deterioration of the political situation in neighbouring Hong Kong, the continuing unrest in Myanmar, and regressions on democracy and human developments in the Asia–Pacific, have highlighted the positive roles that Japan and Taiwan could play to raise awareness and respect for human rights across the region.

The experiences of Japan, both positive and negative, in its domestic engagement with the issues of refugee protection, can provide a useful guide for Taiwan. The current push from civil society for Taiwan to have an asylum law will set normative expectations for the country to abide by international standards, rules, and practices for refugee protection. The Convention, which addresses the specific vulnerability of refugees and people seeking asylum, should be the foundation for refugee protection. Even though Taiwan is outside the UN system, any additional state support for the Convention will be a positive regional development. Despite global challenges of security, and economic downturns that have contributed to population displacement and human insecurity, there are opportunities that lie ahead. Japan and Taiwan do not operate in a vacuum; both can choose to lead the discourse on refugee protection in the Asia–Pacific that historically has seen low support for the Convention.

Looking at the experiences of Japan, ratification of the Convention is not enough. Without a wide base of public awareness and support, there is no meaningful refugee protection that aligns with the spirit of the Convention. Absence of a national law on asylum, as in the case of Taiwan, is detrimental to a transparent, predictable, and consistent channel for asylum determination. However, this too, is not enough. Japan has had the Immigration Control Act since 1982 as the administrative framework for the country’s asylum process, but the legislation has not led to meaningful domestic protection of asylum seekers in Japan. The current act focuses on immigration control, and its limitations in protecting refugees are clear, so many human rights and refugee experts have highlighted a need for a separate asylum law focusing on the implementation of a fair asylum process by a specialised institution independent from immigration control (JAR, 2023). The establishment of an independent institution for refugee protection was called for by the opposition in early 2023, but this proposal was not included in the amended Immigration Control Act passed in June 2023 (Kyodo News, 2023).

Without a broad acceptance of the responsibility to take in refugees, refugee protection will continue to be externalised. This calls for a multitude of solutions to build and sustain public support for refugee protection, where gaps in law can be amended and realities can be reimagined to become ones based on respect for human dignity. A glimmer of hope outside of the Convention was when Indonesia released a Presidential Regulation in 2016, setting an operational framework on the treatment of asylum seekers, even though it is not a party to the Convention. With this regulation, asylum seekers in Indonesia are not treated under the immigration act that stipulates the arrest and detention of migrants without documents (Missbach et al., 2018). Limitations, however, are still seen in a lack of resources and political will to implement effective refugee protection under the regulation (Missbach et al., 2018). Jones (2014) examines another alternative for Southeast Asia, a “law of asylum” that guarantees “rights to individuals rather than refugees” by arguing that many of the civil and political rights guarantees in the Convention are already provided by major international human rights treaties.

While criticisms of both approaches are valid—in that they, for example, present options for states to sidestep the Convention by moving to ad hoc systems—nevertheless, recent developments have illustrated that there is no straightforward path for international refugee protection, as seen in Western countries also backsliding on commitments to protect refugees in search of safety. A practical solution may be to look at soft law instruments, such as the 2018 Global Compact on Refugees and the Global Compact for Safe, Orderly and Regular Migration, to build up broad community support to offer real assistance to individuals seeking sanctuary. The problem, however, is that soft law instruments emphasise the role of state cooperation, without concrete legal commitments. They cannot completely fill the space of the international legal regime for refugee protection. At the same time, the reverse can also be said of the Convention. State ratification alone does not offer effective or meaningful protection if domestic laws render it inapplicable in reality—as in the case of Japan. In the case of Taiwan, it is unclear what the impact of Taiwan holding itself as a state party to the Convention would be if the island continued to operate without an established national mechanism for asylum determination.

There is no one-size-fits-all solution. It calls for us to use all the tools available to foster greater refugee protection, for a region of the world that sees very high displacement risks and no regional human rights treaty. In Japan and Taiwan, civil society has taken the lead in providing refugees with essential lifelines and assistance. In both countries, there is a small but increasingly visible group of migrants and refugees themselves speaking out for their own rights, leading to more meaningful and rights-based debates. Hope lies in this space of active and dedicated civic engagement. The collaborative advocacy of many national and international NGOs, community groups, bar associations, academics, and opposition lawmakers played a pivotal role in bringing significant public attention to the situations of refugees and asylum seekers in Japan during parliamentary debates on the amended Immigration Control Act in 2023. It is the longstanding and constant advocacy by Taiwan’s civil society groups that has kept alive the dream for a national asylum law, while the country hopes to balance the duty to protect those fleeing from persecution with measures to ensure its political survival. In both Japan and Taiwan, as it is in many countries, it is the strength of this civic engagement in democratic societies that sustains our hope for the future, of a more inclusive society where our Four Freedoms meet.